Court of Appeal orders costs in the cause for interlocutory injunction appeal, capping recovery at 80% due to partial success.

THE COURT OF APPEAL

CIVIL

Neutral Citation Number: [2025] IECA 210

Court of Appeal Record Number: 2025/138

High Court Record Number: 2025/1908P

Whelan J. MacGrath J. Hyland J.

BETWEEN:

YOPLAIT IRELAND LIMITED

PLAINTIFF/RESPONDENT

-and-

NUTRICIA IRELAND LIMITED

DEFENDANT/APPELLANT

Judgment of Ms. Justice Hyland delivered on the 24 day of October, 2025

INTRODUCTION

1. The principal judgment in these proceedings was delivered on 1 August 2025, Yoplait Ireland Limited v Nutricia Ireland Limited [2025] IECA 163, whereby the decision of the High Court granting an interlocutory injunction restraining the Appellant/Defendant (“Danone”) from passing off its skyr products as those of the Respondent/Plaintiff (“Yoplait”) was upheld. This supplemental judgment addresses the costs of that appeal.

2. In the High Court, the trial judge, Barrett J. ordered that Yoplait’s costs should be costs in the cause (Yoplait Ireland Ltd. v. Nutricia Ireland Ltd. [2025] IEHC 537). No appeal was brought against that Order and therefore this judgment is only concerned with the costs of the appeal.

ARGUMENTS OF THE PARTIES

3. Danone submits that the appropriate order is for the costs of the appeal to be costs in the cause, or reserved to the trial of action, relying upon Order 99, r. 2(3) of the Rules of the Superior Courts (RSC), which provides that, inter alia, the Court of Appeal “upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.” Danone argues that the appeal involves issues that will reappear at trial, making it inappropriate to justly adjudicate costs at this stage, citing the decision of ACC Bank plc v Hanrahan [2014] 1 IR 1.

4. Danone argues that a full assessment of each limb of the Reckitt test is not feasible at the interlocutory stage, and that a determination on the issue of passing off is more appropriately made by the trial judge following a comprehensive evaluation of all the evidence. In support of this position, Danone refers to Heffernan v Hibernia College Unlimited Company [2020] IECA 121, where Murray J. recognised that interlocutory proceedings are often influenced by evidence not yet available at that stage. Further support is drawn from Paddy Burke (Builders) Limited v Tullyvaraga Management Company Limited [2020] IEHC 199, in which McDonald J. ordered costs in the cause, emphasising that it would be wholly unjust for the defendant/appellant to bear the costs of the interlocutory injunction, whether in the Circuit Court or the High Court, where the application was unsuccessful solely on balance of convenience grounds.

5. Yoplait argues for its entitlement to costs, citing the Legal Services Regulation Act 2015 (the “2015 Act”) and Little v. Chief Appeals Officer [2024] IESC 53. Section 168 of the 2015 Act gives courts broad discretion to award costs and s.169 contends that the person who is wholly successful is presumptively entitled to their costs. It argues that it was overwhelmingly successful in the appeal by defending the injunction and the variation of the order does not justify Barrett J’s decision on costs. Yoplait acknowledges that even partially successful appeals can allow for an entitlement to costs, citing Higgins v. Irish Aviation Authority [2020] IECA 277, Coulston v. Doyle [2024] IECA 255 and Chubb European Group SE v. the Health Insurance Authority [2020] IECA 183.

ANALYSIS

6. The traditional approach to costs following a decision on an application for an interlocutory injunction was to reserve the costs to the trial judge. The case of Dubcap Ltd v Microcrop Ltd (Unreported, Supreme Court, Keane J. 09 December 1997) explains the rationale for this approach as follows: “It is right to say, of course, that while there is no rule of court or even of practice to that effect, the normal procedure on the hearing of an interlocutory application is to reserve the costs to the trial judge. The reason for that is obvious: there may and very frequently will be matters which can only be resolved by the court of trial on oral evidence at a plenary hearing of the action and indeed matters may come to light by way of discovery or by way of new evidence not available to the parties at the time of the hearing of an interlocutory application which may bring about a result which seemed unlikely or improbable at the time of the hearing of the interlocutory application, so for that reason it is quite normal on the hearing of interlocutory applications to reserve the costs. But that is not to say that the court does not retain its discretion to deal with costs in what appears to it to be the most just manner possible.”

7. A similar approach was taken by Laffoy J. in O’Dea v Dublin City Council [2011] IEHC 100. This case concerned a dispute between a tenant and the Council. The plaintiff sought an interlocutory injunction directing re-housing, which was settled before hearing. The court held that, in the absence of a determination on the merits, it was not its function to determine liability for costs and made no order as to costs. At paragraph 6.5 Laffoy J. quoted Keane J. in Dubcap, and noted that: “A large variety of interlocutory applications come with the ambit of [Order 99] rule 1(4A). Most, by their nature, are susceptible to a determination as to where liability for costs should lie, without giving rise to concern that an injustice or an unfairness may be perpetrated. In my view, an application for an interlocutory injunction is not in that category, as is illustrated by the course which was usually adopted in relation to the costs of an interlocutory injunction prior to the coming into operation of rule 1(4A) - that the costs were reserved for the trial Judge to determine at the conclusion of the substantive hearing.”

8. With the adoption of Order 99, Rule 2(1) and (3), and indeed prior to that, Order 99, Rules 1(1) and 1(4A), the approach to the costs of interlocutory applications changed significantly. Rule 2(1) and (3) provided that, subject to the provisions of statute (including sections 168 and 169 of the 2015 Act) and except as otherwise provided: “(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively…

(3) The High Court, the Court of Appeal or the Supreme Court, upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

9. As observed by Whelan J. in Smith v. Cisco Systems Internetworking (Ireland) Limited [2023] IECA 238: “Thus it is clear, particularly in light of O. 99, r. 2(3), that it is appropriate that this court determine, address and make an appropriate award of costs at the

conclusion of an interlocutory application unless “it is not possible justly to adjudicate upon liability for costs” on the basis of the said application” (paragraph 13).

10. One can see the sense behind Order 99, r. 2(3): it avoids a trial judge adjudicating on the costs of a matter that he or she was not involved in, and that likely took place some months, or even years, prior to the determination of the substantive hearing. Instead, the judge who is intimately familiar with the matter, having recently adjudicated upon it, is in principle charged with determining the costs of that element of the case, provided it is possible to do so justly. It may be noted that there is no special carve out in Order 99 r.2(3) for the costs of interlocutory injunctions. Nonetheless, as the case law demonstrates, there will be circumstances where, having regard to the characteristics of an interlocutory injunction, the interests of justice will dictate that costs will be reserved. In Glaxo Group Ltd. v Rowex Ltd. [2015] IEHC 467, Barrett J. reserved the costs, on the basis inter alia that the injunction application dealt with matters that would be central to the full trial and this militated against making an order for costs at this stage. In the costs judgment of Barrett J. in the within proceedings, he ordered that Yoplait’s costs of the interlocutory application, and the cost application were to be costs in the cause, and made no Order as to Danone’s costs (paragraph 7), on the following basis: “Although Yoplait was successful in obtaining interlocutory relief, that success was necessarily based on a threshold standard – that of establishing a fair issue to be tried – rather than proving its case in full. Success at the interlocutory stage is not equivalent to success on the merits. A party may prevail on an interlocutory application and still fail at trial, once the full evidential record is before the court … It would be unfair and inappropriate to make a simple order for costs in favour of Yoplait in circumstances where Yoplait may yet (I do not know) be found at the trial to have failed to establish one or more limbs of the test for passing off.”

11. In Paddy Burke (Builders) Ltd [2020] IEHC 199, McDonald J. made an order directing costs in the cause in circumstances where the plaintiff unsuccessfully sought an interlocutory injunction against a receiver, on the basis that there would be a real risk of injustice if the receiver was awarded his costs at the interlocutory stage. On the other hand, in Thompson v Tennant [2020] IEHC 693, Butler J. found it was possible for the court to adjudicate on the costs of an interlocutory injunction application (albeit with a stay) where the plaintiffs had succeeded in establishing a fair question to be tried and that the balance of convenience favoured an injunction. Equally, in Madden v Louth County Council [2020] IEHC 422, where the plaintiff was unsuccessful in restraining the defendant by interlocutory injunction, Allen J. found nothing in the circumstances of the case justifying a departure from the general rule that the successful defendant was entitled to an award of costs against the plaintiff.

12. The above summary of the law makes it clear that I should decide on the costs of this appeal unless it is not possible to do so justly. The traditional approach – endorsed in Dubcap and O’Dea – recognises the inherent complexity and provisional nature of interlocutory applications. These proceedings often involve issues that are central to the substantive trial and may be significantly affected by evidence not yet available.

13. Here, given the nature of the dispute between the parties, I have concluded that it would be unjust to decide the costs of the appeal concerning the grant of an interlocutory injunction and that the costs should be costs in the cause, for the same reasons as Barrett

J. identified in the High Court. The issues raised in this appeal will be revisited at the substantive trial. If they go against Yoplait, and it transpires that the test for passing off is not met, then it would be unjust to impose the costs of this appeal on Danone in circumstances where its stance that it is not passing off – and on that basis, appealed the decision to grant an interlocutory injunction restraining it from passing off – will have been vindicated.

14. On the other hand, if Yoplait proves that Danone was indeed passing off its skyr yoghurt as that of Yoplait, then Yoplait will very likely obtain an order for the costs of the entire action, including this appeal. There is no injustice to Yoplait in requiring it to wait until the substantive trial is concluded before a decision is made on costs, including the costs of the appeal.

15. Finally, I should adjudicate upon the argument made by Danone that Yoplait should not obtain the entirety of its recoverable costs, given this Court acceded to that part of Danone’s appeal that was concerned with the form of Order of Barrett J., with the Order being varied by this Court. Danone argues that it was accordingly successful to a limited extent. Yoplait argues that it ought to be treated as being wholly successful and thus entitled to all its costs given the fact that it largely prevailed in the appeal.

16. I consider that Danone succeeded in an important (albeit limited) aspect of its appeal. To reflect this, I will order that if Yoplait ultimately obtains an Order for the costs of this appeal at the determination of these proceedings, it should recover no more than 80% of those costs.

CONCLUSION

17. For the reasons set out above, I have decided that the costs of the appeal incurred by both parties should be costs in the cause and that any recovery by Yoplait of its costs of this appeal should be capped at 80% of those costs. The costs of this application will also be treated as costs in the cause in their entirety.

18. Since this judgment is delivered electronically, I am authorised by Whelan and MacGrath JJ. to state that they agree with it and the orders proposed above.